Justice delayed

Here's a West Virginia story on Buchmeyer:

"This marvelous contribution is from Kevin A. Wiggins of Steptoe & Johnson, P.L.L.C. in Clarksburg, W.V.

Wiggins writes: "A local businessman in rural West Virginia who owns an automobile tire store wanted to retire and move to Florida. However, he couldn't find any buyers so he decided to liquidate his inventory by selling it for 90 percent less than the retail price."

The national tire chain heard what he was up to and hired Kevin's firm to obtain an injuction. They promptly went before the judge to schedule a hearing. After Wiggins explained to the judge why his client wanted the injunction, the judge said, in a southern drawl:

"I don't think I can give you a hearing until after 4:00. I have to get new tires for my car."

View from the Deerlick trail at The Homestead

Did you ever wonder where this trail goes? We used to.

On abusive driver fees

"A 'dangerous' driver is a 'dangerous' driver, whether he or she is a life-long resident of Virginia or simply passing through on his or her way to another state or country. If they are driving in a manner defined as 'dangerous' under the statute, then the resources necessary to arrest and prosecute them are the same, or, if involved in an accident, the resources necessary to transport the injured, or repair the roads. Virginia does not limit the use of its roads or its rest stops to Virginia residents; they are for all to enjoy."

Hon. Archer Yeatts, III, Henrico County General District Court, in Com. v. Price.

Judiciary Committee forwards Southwick nomination

This ACS post says:

"This afternoon, the Senate Judiciary Committee approved the nomination of Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit. The nomination -- which has proven controversial on account of Judge Southwick's record in civil rights cases and others pitting individuals against corporations -- will now face the full Senate."

A commenter says:

"How is Southwick's record controversial? Who created this controversy? It seems to me he has a sterling record. Does it worry ACS that the next Democratic president's nominees will be treated poorly too?"

Another commenter points to this article, which says in essence, where are the Democrats going to find any nominees that live up to the standard now being applied against Southwick - which is essentially this - some interest groups don't like him.

The article says:

"If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot."

Fun fact

"There may not be enough lawyers to feed the hiring appetite. According to our survey of summer associate hires, Am Law 200 firms expect to bring on roughly 10,000 associates next fall. That astonishing number equals about one-quarter of all the students who will graduate from U.S. law schools next year. To put it another way, the top 20 law schools will only produce about 6,500 graduates."

Annual Survey Shows the New Reality of Associate Life,
Aric Press, The American Lawyer, August 1, 2007

On writing appellate briefs

"There is a quaint notion out there that facts don’t matter on appeal — that’s where you argue about the law, facts are for sissies and trial courts. The truth is much different. The law doesn’t matter a bit, except as it applies to a particular set of facts."

Alex Kozinski, The Wrong Stuff, 1992 B.Y.U.L. Rev. 325, 330 (1992), and cited in this article, which I found via this post from Ray Ward.

I always start reading up on how to be an appellate lawyer or whatever kind of lawyer after losing one. I wish I could figure out how to get something done for my old friend in that case.

Boucher broadband bill

Via Jim Baller, here is the proposed Community Broadband Act of 2007.

More on the ABA's proposed new standard of bar passage rates for law schools

Here are some articles worth reading by anyone who cares about Appalachian School of Law or the law school at Liberty or Regent or any new(er) law school in a state where there are several:

ABA Proposal Threatens Diversity In Legal Education, 7/3/07 - "As the Patton Study showed, the proposal will put almost all of the diversity-friendly schools out-of-compliance and worsen the state of minority enrollment."

ABA Moves to Tighten Bar Standards: What it Means, 7/6/07 - "Because of the explosive growth in the corporate law sector, large number of top law students from across the country take the New York, Virginia, and California bar exams. Further, this trend will only become more pronounced in the coming years. This means that lower-ranked schools in these jurisdictions (or bordering states, who will likely be affected by the 20% graduates/70% passage rule) will be tilting into ever-greater headwinds."

The Bush Department of Education Tries to Gut Grutter Below the Radar Screen, 7/11/07 - "Officially, the Department of Education and the ABA (under pressure) are concerned about the quality of education, but this is pretty clearly also a means of limiting affirmative action at non-elite law schools. (The bar passage rates at elite law schools are sufficiently high that admissions policies would be largely unaffected by the new rule.) Students with weaker numerical qualifications coming into law school fail the bar in larger numbers than those with stronger ones; by requiring higher bar passage rates at the back end, the new standard would limit the ability of law schools to admit students with weaker numbers (but with other qualifications, including their contributions to student body diversity) at the front end."

ABA Proposes Bar Pass Rate Standard, 7/31/07 - "(1) The first slightly odd thing about this rule is that the first prong compares the school to all test takers from ABA approved schools, including out-of-state test takers. I’d like to know how out-of-state test takers do compared to in-state. In Florida they do about average; but what about, say, New York and California? Do the many out-of-staters make things easier or harder for local schools? [See (3) below for a discussion of whether a bright-line makes sense.]

(2) For law schools on the cusp, this will create real pressure to do bad things.

(A) They will have an even greater incentive to play it safe on admissions. We know that the one thing the LSAT predicts well is your ability to take tests, and the bar exam is a test. This rule will inevitably work against people with lower LSATs, and that means disproportionately against people whose families have less money and who are not white.

(B) Alternately, if these schools want to keep taking risks in admissions, they’re going to have to flunk out more students in order to only graduate those with a high probability of passing the bar. The downside of this policy is a “One L” atmosphere: schools become much more stressful, meaner, places — which may not be conducive to learning.

(C) A correlative pressure will be to teach even more to the bar; and while the bar arguably may test stuff most lawyers should know, nobody could seriously argue that a three-year bar course will tend to produce good lawyers.

(D) Lastly, for schools right on the knife edge, there will be enormous pressure to manage who takes the bar by having weak students delay test-taking: stuff all your at-risk students into one calendar year, and thus improve your outcomes in the alternate year. As a result, I predict an increase in the annual variation in the bar pass rate scores of schools in the at-risk zone.

(3) Some law schools could be in real trouble. I have absolutely no idea what the second and third time pass rates look like; it may be that enough people make it eventually so that the 80% within three tries within three years rule saves schools that would fail the first test. But I rather doubt this is true in all cases. (The conventional wisdom is that anyone can fail once but if you don’t pass on second try your chances of ever passing are quite low.)"

Between a rock and a hard place

People sometimes write to me about John Brownlee, the U.S. Attorney for the Western District of Virginia.

On his recent appearance before Congress, some say as in this post that DOJ should have been telling him to delay the Purdue deal, because it was too soft on the company. The Washington Post article says, however, that the call to the W.D. Va. prosecutors came at the request of counsel for the company - and obviously not for the purpose of replacing the deal with something more harsh. So, some like Senator Specter wanted Brownlee's office to do more, some who were sympathetic to the company wanted them to do less.

Mr. Brownlee's statement to the Judiciary Committee is here. It references, among other things, the criticism from Dr. Sally Satel, published in the Wall Street Journal, and reprinted here, who thought the Purdue deal would come at a cost to pain sufferers.

The last word on the claim of political interference in the Purdue case belongs to Chief Judge Jones, who wrote this: "It has been suggested that Purdue may have received a favorable deal from the government solely because of politics. I completely reject this claim. I have had long experience with the United States Attorney for this district, and I am convinced that neither he nor the career prosecutors who handled this case would have permitted any political interference. In fact, I am sure that they would have refused to accept a plea agreement that they did not sincerely feel was in the best interests of justice."

UPDATE: Wait, the Roanoke paper is sounding off on the same topic.

Bad driver fees declared unconstitutional in Henrico County

The AP has this report, in the Richmond paper.

UPDATE: The Attorney General's response -

"Today’s lower court decision is being appealed by the Henrico County Commonwealth’s Attorney. Therefore we will have no comment on the merits of active litigation. This office has stated that the transportation package passed by the General Assembly this session is constitutional. This office is statutorily obligated to defend the constitutionality of measures passed by the General Assembly, unless patently unconstitutional. As a matter of policy, I believe out of state drivers should be subject to the abuser fee law. The proper venue for such a change in public policy is the Virginia General Assembly."

Those pesky law professors and students

Three times in the past, I have gone to Baltimore (and not Richmond) to argue in the Fourth Circuit, and each panel included Judge Niemeyer or Judge Murnaghan or both. On one of those days, Judge Murnaghan in the weak but charming voice of his later years, elaborately greeted a third-year student and the law professor who sponsored him, and then proceeded to take the student's legal position apart, politely and thoroughly.

I thought of that day when I read the opinions in Strong v. Johnson and Williams v. Ozmint.

In Strong, a Virginia case, the issue was whether the petitioner's counsel had improperly failed to note an appeal requested by the petitioner, and the Court concluded on the limited record that the petitioner had agreed not to appeal. Judge Gregory dissented, concluding that a letter from petitioner's counsel to the State Bar should not be considered evidence that would overcome the petitioner's sworn affidavit.

In Williams, a death penalty case, the petitioner claiming ineffective assistance got his writ in District Court, but the Fourth Circuit reversed.

Williams was argued by Professor David Bruck of Washington & Lee. Strong was argued by Geoff Clemens, Student Advocate, Charleston School of Law, sponsored by then-Professor Lorri Unumb, who had that television show, "The Law with Professor Lorri."

Lawyer demographics

What do we know about the lawyers in the U.S.? Here is one set of statistics from the ABA Marketing people. It says among other things that 70 per cent of lawyers in private practice are with firms of 10 lawyers are less, as of 2000.

What do we know about the lawyers in Virginia? Here are some 2007 membership statistics from the Virginia State Bar. It says there are 26,000+ active members of the VSB in 2007, and fewer than 500 in the counties that make up the 28th, 29th, and 30th circuits.

Wes Shinn named ASL dean

Here is the press release that says Clinton W. Shinn has been named the Dean at the Appalachian School of Law.

It says in part:

" Professor Shinn practiced law in New Orleans, Louisiana for more than 25 years, concentrating in the areas of probate and estate planning, commercial transactions, oil and gas property interests, and environmental regulation.

Professor Shinn returned to full-time academia in 1999, having previously taught for two years as an assistant professor of law at the Tulane University School of Law. From 1999 until 2001, he was a member of the ASL faculty, and then was an associate professor of law at the Mississippi College School of Law from 2001 until 2006. In August 2006, he returned to Appalachian as tenured Professor of Law.

Wes Shinn is a graduate of the Tulane School of Law, where he graduated with highest honors, was elected to Order of the Coif, and served as Editor-in-Chief of the Tulane Law Review. He earned an LL.M. from the Harvard Law School in 1973. He teaches courses in Property, Secured Transactions, and Estates & Trusts at ASL. Dean Shinn has published in the legal fields of civil law obligations, secured transactions, and environmental law, and has been a frequent speaker in the areas of wills and estates. He is a Fellow of the American College of Trust and Estate Counsel, a Charter Fellow of the Louisiana Bar Foundation, and served a term as an elected delegate to the Louisiana State Bar Association."

Speaking of ASL, our annual sojourn to the Willowbrook golf course at the Breaks for the annual fundraiser tournament is fast approaching.

Could this be a title for my memoirs?

Here is Cheeseburger Steve.

This important item from the Roanoke paper suggests that the title would not appeal to former President Carter.

Local rule on ADR for the W.D. Va.

I read on the W.D. Va. website the new local rule regarding alternative dispute resolution, promulgated pursuant to 28 U.S.C. 651.

And, one thing I noticed was where it says this:

"G. Enforceability. The Court will not assist in the enforcement of any agreement, settlement, or fee arrangement from any alternative dispute resolution process which is not annexed by the Court. In all other situations, the parties may invoke any of the Court's traditional enforcement mechanisms."

So, what does it mean to have an "alternative dispute resolution process" "annexed by the Court?" I'm not sure that the answer is obvious, although there are plenty of references to "court-annexed mediation" online. It sounds like the conservative course is to either use the magistrate judge, or get a formal order referring the case to an outside mediator, and then perhaps have the settlement referenced in some manner in connection with whatever papers are filed requesting dismissal.

The next time I get a chance, I may inquire of someone who can set me straight.

UPDATE: Evidently, this has been part of Judge Conrad's standing order on ADR for years. I knew it came from somewhere. Maybe the same language is in local rules everywhere, but it is new to me.

Retailer's indemnification agreement with bankrupt manufacturer justifies stay of products liability claim

In an interesting opinion in the case of Midkiff v. Lowe's Home Centers, Inc., Judge Kiser stayed the personal injury claim against Lowe's over a defective ladder, where Lowe's had an indemnification agreement with the manufacturer, now in bankruptcy in Delaware.

Should have learned from that story about Noah

The Bristol paper has been reporting on the case of a minister and gospel radio personality from this side of Bristol, who was apprehended at a car wash in Tennessee while drunk and wearing a skirt and urinating in public and exposing himself indecently and propositioning lewdly some law enforcement officers.

Evidently, some if not all of this is illegal in Tennessee, although there may not be a statute on the skirt.

In the Bible, Noah passed out drunk, his son Ham thought it was funny, and so Noah cursed Ham's son and his descendants - a tale that has been the subject of art and literature ever since, including this image from the Sistine Chapel.

Was there a split between John Brownlee's office and Main Justice over prosecution of Purdue?

This New York Times article suggests that there were some differences between the prosecutors in the Western District of Virginia and Justice Department official in Washington, D.C., over how far to go in prosecuting Purdue Pharma.

The article is interesting, particularly after reading, via the VLW blog, this detailed and disheartening account about how the criminal prosecution in the E.D. Va. aimed at individuals, including some lawyers, connected with the failure of the Reciprocal of America has petered out. Reciprocal of America was the parent of ANLIR, also in receivership in Tennessee, and which was formerly the legal malpractice carrier endorsed by the Virginia State Bar.

On Charlottesville's drug court

At the summer meeting of the The Virginia Bar Association at the The Homestead, I heard a presentation by Judge Hogshire on Charlottesville on the drug court program he oversees. And, he spoke with a missionary's zeal, describing how he was skeptical of the program he inherited when he came on the bench, it had been started by his predecessors including Judge Swett but it was too new for anyone to have completed the program, and he didn't know how it would work. But now, he will talk at any length about the transformations he has observed in some of the lives of people who have gone through the program.

And, C-ville Weekly has this report on some recent additions to that list.

I'd say that Drug Court Graduation Day is a powerful event.

Good idea

This story about a Crohn's disease fundraiser begins:

"It's one of the most important things I'll do all year," says Jim Smith from Lynnwood.

He's talking about the 210-mile bicycle ride this weekend through Western Washington to raise money and awareness about a condition Jim has.

It's the "Get your Guts in Gear" ride for Crohn's disease and Colitis. Fortunately along the route: "There are a lot of rest stops and a lot of bathrooms," says Jim.

There ought to be a law on this

When I read this great story from the Norfolk paper, it occurred to me that there should be a legal presumption that all VMI men without heirs intended to give all to VMI.

I haven't met a VMI grad yet who didn't fit my image of VMI grads. There might be some bad apples out there, but they don't hang out where I would meet them.

The Last Great Colosseum

I like this ad for the Bristol Motor Speedway's Food City race.

Hey, that's right

I read this post, about how Senator Schumer says he will not go along with any more nominations by President Bush to the U.S. Supreme Court.

One of the commenters points out that what the Supreme Court did in Gonzalez v. Carhart was to uphold the constitutionality of an act of Congress passed with the votes of current and former legislators such as Democrat Senators Bayh, Biden, Daschle, Leahy, and Reid, and the Republican Specter.

When Senator Specter goes back to check his notes, he might see that one of his main complaints in the confirmation sessions was about the Supreme Court overturning acts of Congress.

After all this, I read here that the Chief Justice went to the hospital today.

What happened to Virginia?

Here is a book review from American Heritage of Dominion of Memories: Jefferson, Madison, and the Decline of Virginia, which fits well with the account, of how the pre-War South actively opposed the incursion of the telegraph, I read in another book recently, Mr. Lincoln's T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War, which was terrific.

Another book I should like to read

A couple of times, I've seen a fellow named Garrett Epps on C-SPAN, most recently in relation to a book about the Fourteenth Amendment, called Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America.

And, I've wondered, is this fellow kin to John Epps, who I know from Board of Governors of The Virginia Bar Association?

Not having the moxie to ask, I've discovered for myself that the answer is yes, and here is what Professor Epps wrote on the passing of their father, Richmond lawyer A.C. Epps - worth reading, even if you never heard of any Richmonders named Epps.

Books read lately

The father-in-law showed up on Friday with a stash of books, of which I read Sailor on Horseback by Irving Stone, a biography of Jack London, The Sportswriter by Richard Ford, Galatea by James M. Cain, and I started The Old Patagonia Express by Paul Theroux - these were part of the stash Dana's uncle the Book Snake sent to the father-in-law to read while he was recovering from surgery.

The London book is about 70 years old, the Cain book about 50 years old, the others about 30 years old.

The reason for so much reading is that I was the designated sitter of this crew, while the others went to the Virginia Highlands Festival.

More on Michael Vick

This piece looks at Michael Vick's lawyers, including Billy Martin and Daniel Meachum.

This interesting commentary from Congressman Bob Barr points out that the Interstate Commerce clause is what put Vick's case in federal court.

This Sports Illustrated piece addresses Vick's case and the impact on the image of Virginia Tech. (The author is that same guy who said Al Groh is the worst.) I prefer the view of Bob Griese, one of my all-time favorites, who said Tech is one of the best this year. I don't think Vick's legal troubles reflect poorly on Tech any more than Ralph Sampson's legal troubles reflect poorly on Virginia.

On the bad driver fees

This AP story and this Richmond paper article (by Bill McElway, so you know it's good) say that a judge in Henrico County will soon rule on the constitutionality of the new bad driver fees that were part of this year's road funding bill.

This Roanoke Times article mocks Delegates Griffith and Kilgore for getting speeding tickets on the interstate between here and Richmond.

On court-packing

There is an opinion piece in the NY Times, making the rounds, which seems to advocate changing the number of justices on the U.S. Supreme Court to get around the conservative rulings of the current Court.

It says in part:

"If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."

This post says yeah, but look what happened to them.

On the demise of LEO 1829

Jeff Shapiro of the Richmond paper reports here on the decision by the VSB to take a pass on LEO 1829.

It is a funny sort of contradiction. When the Rules replaced the Code in Virginia, the proscription against the appearance of impropriety was taken out, because it was thought to be too vague, yet under the Code, this vague language led to a nevertheless "bright line" rule, which LEO 1829 would have eliminated.

UPDATE: The Shapiro story contains one misleading point, with regard to the position of the LGA, or so I'm told, who in their comment to the VSB said, among other things: "There was also consensus that our members would prefer a return to the appearance of impropriety standard contained in the former Code of Professional Responsibility."

That's what I think, and a lot of Virginia lawyers think.

What some elected judges think

"As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me."

Richard Neely of the West Virginia Supreme Court, quoted on Forbes.com.

Another interesting Virginia lawyer profiled

Here is a profile of Eleanor Weston Brown, Newport News lawyer and Regent law professor, and owner of two houses and a hybrid car, among other things.

Jim Webb and Lebanon in Rolling Stone

Some government employee sent me the word about this excerpt from the Jim Webb profile in Rolling Stone magazine, which is largely about Southwest Virginia.

It begins:

"As night settles between the mountain ridges that rise on either side of Lebanon, Virginia, a rough little strip of a town in the state's southwestern corner, Sen. James Webb's people assemble in the Russell County Courthouse. They're coal miners and miners' wives, a third of them in the camouflage strike gear of the United Mine Workers, many of them wearing ball caps declaring them veterans of Korea, Vietnam or Iraq. A leather-skinned veteran named Eldridge tells me in a raspy whisper that he voted for Webb because Webb, a novelist and historian, had gotten these people, mountain people, right in his most recent book, a best-selling history of the Scots-Irish in America called Born Fighting. "We've got our own ghosts and goblins," Eldridge says, and he thinks Webb sees them. "He has the Second Sight.""

Another item I missed

VLW Blog posted here that Judge James Benton of the Virginia Court of Appeals has announced his retirement.

National media came to town for the OxyContin sentencing

I was at the Homestead on Friday, but the New York Times and Time magazine were in Abingdon to see the protesters and the proceedings before Chief Judge Jones in the criminal case.

On Judge Widener and senior status

On Friday, the Washington Post had this short article about Judge Widener. It says in part:

"The nation's longest-serving federal appellate judge has stepped down as an active member of the U.S. Court of Appeals for the 4th Circuit, leaving it with five vacancies.

Judge H. Emory Widener Jr. took senior status Tuesday, his secretary, Peg Bishop, confirmed yesterday."

On Judge Conrad

The Charlotte paper had this article on the announcement that President Bush would nominate Chief Judge Robert Conrad, Jr., of the W.D.N.C. to the long-vacant position on the Fourth Circuit formerly held by Judge Phillips, and to which Judge Boyle was nominated at different times.

Here is a friendly profile of Chief Judge Conrad.

On the flip side, ACS had this negative post about Chief Judge Conrad.

Commentary on AT&T Wireless

This article links the sole service provider for Apple's new iPhone with terrorism surveillance.

It begins:

"If you didn’t manage to snag an iPhone yet, it might not be the worst thing in the world. In addition to saving some money to pay off those pesky student loans, you also might be successfully avoiding wiretaps from the National Security Agency."

A Tiger on the Court?

If you haven't heard, it says here that the White House is nominating U.S. District Court Judge Robert Conrad, Jr., from the W.D.N.C. to the Fourth Circuit.

Judge Conrad is the one who played college ball at Clemson.

Also, SC Appellate Blog reports that Judge Widener is announcing for real that he is taking senior status.

On Michael Vick a/k/a "Ookie"

I looked at the Michael Vick indictment on PACER.

It says he and his friends called their enterprise "Bad Newz Kennels." The indictment describes dog fights in several states, and the killing of some dogs who wouldn't fight.

I'd say they wouldn't want me on the jury.

You can see the indicment here.

The record on innocence petitions

According to this story in the Richmond paper, not one of these has been granted.

The article notes: "According to a spokesman for the Virginia Court of Appeals, as of the end of 2006, 92 petitions had been filed. Eighty-five were dismissed and seven were pending."

The article also says: "Critics say that is because the law is impossibly tough."

The article quotes Senator Stolle: "I think that unless somebody is actually innocent and actually has to a large degree irrefutable evidence that they're innocent, they will not be able to take advantage of this writ of actual innocence."

On Dr. Hurwitz

This article from the NY Times about the sentence in the case of Dr. Hurwitz from Northern Virginia has mostly generated comments to the effect that he should not be sent to prison at all, for overprescribing pain medication.

All of which reminds me of the case of Dr. Nick, who wrote the prescriptions for Elvis, but was acquitted.

Unrelated to these stories, the Roanoke paper is reporting that there will be a rally against the manufacturer of OxyContin in downtown Abingdon on Friday of this week, to coincide with the hearing on the sentencing of the three manufacturer's executives. I don't recall anything like that since the Pittston strike, or maybe failed effort to enjoin the foreclosure on the hard rockin', flame-throwing FM radio station, which was said to be Abingdon's own version of "The Day the Music Died."

John Warner raises $500 in first quarter?

Those at MyDD take the lack of fundraising as a sign that Senator Warner will not run again.

The author of this Wizbang post hopes Jim Gilmore will take his place, now that he has quit the presidential race.

On Drew Weaver and the British Open

I don't know how much of the British Open I'll get to see this week, but one guy's score I'll be checking is Virginia Tech junior Drew Weaver, who as this summer's British Amateur champion will be paired up with defending Open champion Tiger Woods on Thursday and Friday.

On Richard Morgan

Glen Reynolds says he has been reading Richard Morgan.

The Richard Morgan I like to think about is the one who threw down 39 points on the Tarheels, who is now (I think) coaching down at Boone.

I'm not the only still thinking about that game.

Another one of those "litigation climate" reports likes Virginia for the defense

It says here:

"The liability climate in Virginia is conducive to growth and job creation. Virginia has the second lowest insurance loss ratios in the nation. The Commonwealth abolished joint liability and enacted reasonable limits on punitive damages among other reforms. The Virginia Supreme Court, which is elected by the General Assembly, has a rule-of-law majority. Since 1993, Virginia has elected attorneys general who were all active legal reform leaders, including the incumbent Attorney General Bob McDonnell. As a member of the House of Delegates, General McDonnell introduced several liability reform bills that were signed into law."

On George Brett

In the case of Central Manufacturing, Inc. v. Brett, the Seventh Circuit's opinion begins:

The Pine Tar Incident

It’s undisputed: George Brett was a great baseball player. The statistics from his 21 years in The Show, all with the Kansas City Royals, seal the deal: 3,154 hits, 317 home runs, and a career batting average of .305. Only three other players—Stan Musial, Hank Aaron, and Willie Mays—ended their careers with more than 3,000 hits and 300 home runs, while still maintaining a lifetime batting average over .300. Brett’s selection to the Hall of Fame, on the first ballot in 1999, was richly deserved. Yet for all his accomplishments, many who love baseball will always think of the “Pine Tar Incident” as the capstone of his career. It is a joy to recall.

It was July 24, 1983, and the Royals, trailing 4-3 to the New York Yankees, had a man on first but were down to their final out in the top half of the ninth inning. Brett was at the plate. The Yankees’ ace closer, “Goose” Gossage, was on the mound. And Brett crushed an 0-1 fastball over the 353-foot mark into the right field seats, giving Kansas City the lead, 5-4. Pandemonium broke out in the Royals’ dugout. The Yankee Stadium crowd fell silent. But things were about to change.

While the Royals were celebrating, the Yankees’ fiery manager, Billy Martin, walked calmly (unusual for him) to home plate where he engaged the umpire, Tim McClelland, in quiet conversation. Martin pointed to an obscure rule (and we sometimes think the Federal Rules of Appellate Procedure are obscure!), which provides that any substance (including pine tar) that a player might rub on his bat handle for a better grip cannot extend more than 18 inches. See Major League Baseball Official Rules § 1.10(b). Martin, pointing to a lot of pine tar on the bat Brett left behind as he circled the bases, asked McClelland to check it out. McClelland, using home plate as a ruler, determined that pine tar covered 24 inches of the bat handle. So the bat, McClelland ruled, was illegal.

With his ruling ready for delivery, McClelland took a few steps toward the jubilant Royals’ dugout and gave the signal: for using an illegal bat, the home run was nullified, and Brett was out. Game over. Yankees win 4-3. And all hell broke loose. An infuriated George Brett charged out of the dugout and rushed McClelland as Martin, who looked like the cat who ate the canary, stood off to the side. It was one of the great all-time rhubarbs in baseball history. And that’s how it ended, at least for July 24, 1983.

But baseball, like our legal system, has appellate review. The Royals protested the game and, as luck would have it, American League President Lee MacPhail (to use a phrase with which we are accustomed) “reversed and remanded for further proceedings.” The game resumed three weeks later with Kansas City ahead, 5-4. It ended after 12 minutes when Royals’ closer Dan Quisenberry shut the door on the Yankees in their half of the ninth to seal the win. The whole colorful episode is preserved, in all its glory, on YouTube, at http://www.youtube.com/watch?v=4Cu1WXylkto (last visited June 6, 2007). See also Retrosheet Boxscore, Kansas City Royals 5, New York Yankees 4, at http://www.retrosheet.org/boxesetc/1983/B07240NYA1983.htm (last visited June 6, 2007).

Lawyers miss hearing, assessed costs, because spam filter ate a hearing notice e-mailed from federal court

Via Jim Calloway, this story tells of some lawyers in Colorado who missed a hearing in federal court because they had ratcheted up their spam filter and it started treating the federal court notices as spam.

Calloway says you must white-list the courts no matter what.

The cheapskate that I am, I/we use as our spam filter a program called SpamBayes, which has no white-listing feature, and here's why. The FAQ says in part: "If you really need whitelisting, consider implementing rules in your mailer to intercept the messages before they're passed to SpamBayes." I suppose it would not be too hard to write an Outlook e-mail rule for ECF/CMF messages. Or, we might break down and buy something like InBoxer.

Why more questions is a bad thing

This HOWT post weighs proposition, the side that gets the most questions will probably lose.

Arguing an appeal is a rare thing for me, but in the trial courts usually the judge if he or she has read the papers or the cases is going to ask somebody, doesn't this fact or this case mean that you lose?

And, sometimes the answer saves the day, but more often it doesn't. The worst situation is when the court stops asking questions, because they've made up their mind and are no longer interested.

Unfortunately, in state court, where the judges have larger dockets and smaller staffs, the questions are generally less incisive.

On motions to dismiss and the Bell Atlantic case

Via this post, this article explains why the Supreme Court's decision in Bell Atlantic v. Twombly will lead to more motions to dismiss being granted, even outside the area of anti-trust law.

More on the proposed new bar passage requirements for accredited law schools

The NLJ via law.com has this article, in which various law school deans blast the ABA's proposal, referenced here, to make specific bar passage rates a mandatory condition for continued accreditation.

Only successful prognostication in the past two years

Earlier this month, a split panel of the Sixth Circuit reversed the ruling of the District Court in Michigan on the constitutionality of the NSA's terrorism surveillance program, in the case of ACLU v. NSA.

And, that's what I thought would happen, although I didn't think it would go down for lack of standing.

Watch what you ask for

ACSBlog has this amusing post about how Vice-President Cheney's effort to claim that his office is outside of the Executive Branch might re-open the cases where he has claimed some form of privilege because his office is within the Executive Branch.

On Monroe Jamison

Bluegrass picker, coal lawyer, defender of the poor, Monroe Jamison died this week, at the too young age of 52.

He and his music buddies played on the front porch at my sister's outdoor wedding. He was a mainstay of live music in Abingdon, working on the Highlands Festival for years. He was in Kiwanis with my dad. I tried a hard-fought case against him in Scott County, not too long ago, and he won it. He was a fine fellow, a good lawyer and much more than a lawyer.

The Bristol paper's obituary says, and I believe it, he leaves behind his family and "a grieving community of musicians, colleagues and close friends who cherished his intelligence, warmth, generosity, quick wit and abundant talents.

Would the Democrats put a Richmonder on the Supreme Court?

SCOTUSBlog has made a list of people who might get picked for the Supreme Court if the next president is a Democrat, and the list includes Chief Justice Hassell and Judge Gregory of the Fourth Circuit.

But, they're not on Tom Goldstein's short list.

Bad plan

The Roanoke paper reports here on the criminal case against a woman who decided to her boyfriend out by plotting to tamper with the car of the judge on his case, so the judge could not show up for court.

The article says in part:

"A woman who plotted to cut the brake lines on a judge's car was released from jail Thursday after several of the charges she faced were dropped.

. . .

At a preliminary hearing in January, a man testified that Dunford asked if he would help her find Showalter's Montgomery County home. After he pressed her, she admitted she wanted to cut his brake lines, he said.

Dunford's boyfriend, Christian Skye Crockett, was in jail on drug charges and Showalter wouldn't grant him bond. Dunford wanted to keep Showalter from showing up for court so another judge would hear Crockett's case, the man testified."

The trial judge in the girlfriend's case is retired Judge Quillen from the 30th Circuit.

Falling down in Pocahontas

This article reports on the collapse of the general store in Pocahontas.

One more on the bandwagon

Here is an editoral from Wheeling, WV, saying that the White House and the Senate need to act now to fill vacancies on the Fourth Circuit.

On wireless in Harrisonburg

Via Jim Baller, here is an update on a recent setback in the plans of the government in Harrisonburg to establish a wireless network.

Downtown Harrisonburg is kind of funky, with the courthouse on its own island in the middle of town, sort of like one of the squares in Savannah. I can't say that I ever did much good the few times I was in there, but I enjoyed being there.

On the late Lady Bird Johnson

When I was born, the President was Johnson and the First Lady was Lady Bird.

In 1965, while she was still First Lady, Lady Bird Johnson came to Abingdon, stayed at the Martha Washington Inn, and, as noted here, "bartered a potted plant for a ticket" to the Barter Theatre.

Or, so I've always heard. Actually, this version from Time Magazine says this:

"At Abingdon, the tourists attended the Barter Theater's performance of Julius Caesar, and the First Lady presented the theater's annual award to Presidential Arts Adviser Roger Stevens for his contributions as a Broadway producer. In keeping with the little theater's name, the group bargained its way past the box office: Lady Bird unwrapped another White House seedling, and Mrs. Humphrey brought a bucket of vegetables—'not to be thrown.'"

30th anniversary ignored

This article begins "The State Bar of Arizona last week had no comment regarding the practice of lawyers advertising, nor did it want to say anything about the 30th anniversary of the U.S. Supreme Court ruling on the matter."

On Eugene Derryberry

Here from the Roanoke paper is a story on the life and times of Eugene Derryberry, who was a business lawyer with the Gentry Locke firm.

The article says in part:

"Prominent Roanoke lawyer Eugene E. Derryberry would often sing and play his guitar in the middle of the afternoon to lighten up the office.

"When Gene would sing, everything in the world would be all right," said Mike Pace, a managing partner at Gentry Locke Rakes & Moore. Derryberry worked at the law firm for 34 years and was known as a mentor and a strict grammarian with a love for teaching."

I didn't know him, but I understood that he was the wise counselor for the family business of my mom's cousin's family business in downtown Roanoke. It seems to me that the Roanoke bar has (or had) a lot of interesting characters.

Lexis buys Juris

Having bought CaseMap, et al, a while back, now LexisNexis has bought Juris, as reported here.

I told the money lady that soon we will get down to two vendors, West and Lexis.

The usual challenges when these vendors get bought is whether the good customer service will continue, and whether the prices will go up.

Another corner heard from

The Bristol paper opines here that it is past time to fill the vacancies on the Fouth Circuit.

Worth reading

From the Suffolk paper:

Esteemed lawyer, civil servant, dies at 95
By Ashley McKnight-Taylor
Monday, July 2, 2007 10:44 PM CDT


Suffolk can claim a lot of notable people, those whose contributions made a real difference in their chosen professions. Many of them, sadly, have passed on.

Last Friday, Herman T. Benn, 95, joined them.

"He will be missed because he was very supportive of the community," said Jean Copeland, secretary of the Virginia E. Crocker Alumni Chapter of Virginia Union University. "He was just a community-minded person."

Benn earned a Bachelor of Arts degree in education and philosophy from Virginia Union University and remained supportive of his alma mater throughout his life. After graduation, he went on to receive a law degree from Robert H. Terrell Law School of Washington, D.C. It was this choice - to become a lawyer, fighting for civil rights and fairness for all - that would bring Benn distinction.

In 1962, he won a case before the United States Supreme Court that determined that segregating people in courtrooms based on race was unconstitutional, which set precedents for courts everywhere. Benn was co-counsel for Johnson v. Commonwealth of Virginia, a case where college student Ford T. Johnson was charged with a traffic violation. In the courtroom, he sat in the section reserved for whites and refused to move when ordered. He was charged and convicted with contempt of court.

The Virginia Supreme Court of Appeals refused to hear the writ, so the case was appealed to the United States Supreme Court. The Supreme Court reversed the conviction, stating "state-compelled segregation in a court of justice is a manifest violation of the State's duty to deny no one the equal protection of its laws."

It was a victory for many blacks across the country, but those who knew him best remember Benn for all of the little ways he touched their lives, lent his helping hand.

"I can't tell you how valuable he was to us," said Charles Christian, former president of the Nansemond-Suffolk branch of the NAACP.

Benn was chairman of the Legal Redress Committee of that organization. He was thorough in gathering information on the cases that came before him, and was sure to suggest where people could find help for their problems if the NAACP was not the appropriate venue, Christian said.

Suffolk City Councilman Leroy Bennett, who has known Benn's family for years, remembered him as a gentle and kind, but firm and professional, man. His goal was to make the world more fair and equitable for everyone.

"He was very strong about city government ... he pushed others to do the right thing," Bennett said.

Benn made his contributions to government, serving as assistant city attorney in Richmond (the first black to do so there) and later as assistant commonwealth attorney for Suffolk. In 1968, he was appointed to the position of United States Administrative Law Judge and served in that position in both the U. S. Department of Health and Welfare and the Department of Labor.

Before that he served his country as a non-commissioned officer in the Army Reserves during World War II.

Benn died Friday in Bon Secours Maryview Nursing Care Center. The Southampton County native was one of eight children born to Mack Benn Sr. and Mamie Scott Benn.

He is survived by his wife, Marian Waller Benn; two sisters, Dorothy B. Armistead and Bernice B. Maloney, both of Suffolk; three sisters-in-law, Bernice Fletcher of Baltimore, Md., Gladys Pegeas of Richmond, and Elaine B. Benn of Sun City West, Ariz.; and several nieces, nephews and cousins.

A memorial service will be held today at 11 a.m. at Saint Paul's Episcopal Church in Suffolk by Father Joseph Green Jr.

Among his many accomplishments, Benn was the first black member of the Virginia State Bar Association, of which he was a retired member. He also was a retired member of the American Bar Association and the Suffolk Bar Association, as well as a life member of the Alpha Phi Alpha Fraternity and St. Mark's Episcopal Church.

"He was an outstanding person, and in his quiet way, he just did so much for the city," Christian said.

And also read this story from 1997:

" Herman Benn's life is filled with firsts.

In 1958, he was the first African-American member of the state Bar Association . . .

In 1967, he was Richmond's first black assistant city attorney . . .

In 1963, he was the first lawyer to win a legal fight that made it unconstitutional for blacks and whites to be separated in the courtroom . . .

The list goes on.

In 1971, Benn marked a personal first.

He so impressed Marian Waller, a widow and a former elementary school teacher, with his patience and kindness that she agreed to marry him. Later, he would persuade her to study law. Marian passed the bar at 53.

``I thought he was a nice person,'' she recalled of their first encounter. ``. . . It didn't take him long to persuade me to become a lawyer.''

Now, Herman - after 45 years of service - and Marian, who has practiced law for 10, are taking down the Benn & Benn shingle.

They are attending their retirement party today at the Holiday Inn in Suffolk - the town where they've spent the past 23 years of their 26-year marriage.

Looking back, Herman, 85, said he was an unlikely source for breaking racial barriers.

Growing up in the early 1900s, he accepted racial discrimination as a way of life and never had any inclination to change things.

As a child, he simply grew accustomed to the white children in his neighborhood spitting at him out of the school bus window. Blacks didn't ride the bus. So he walked four miles to school.

Herman said he never thought about the separate water fountains or using the back door when he entered restaurants - and much later, while in the Air Force - being forced to work in a separate unit.

Becoming a lawyer to fight racial frustrations was not an ambition until, at 28, he decided not to re-enlist.

``I had experienced so much discrimination, I felt like maybe I could take some actions to correct the situation,'' he said. ``I noticed that black attorneys had won many discrimination cases, and they had come to be recognized as being able to do anything that white attorneys could do.''

Herman moved to Washington and worked as a postal clerk while attending law school. He later graduated from Robert H. Terrell Law School - ``named after the first black judge to sit on the bench in Washington.''

After nearly 50 years, law still excites him.

Of all the cases he's handled, he cherishes most a discrimination suit.

``It was citation number 373 U.S. 61 in 1963,'' he recalled.

He stumbled on the case after he graduated from law school and moved to Richmond. Ford Johnson, the son of a dentist, asked Benn to represent him after he was found in contempt of court for sitting on the white side of traffic court.

When Johnson was asked, he refused to move to the other side.

``Said he was comfortable where he was,'' Herman recalled.

The judge asked him to approach the bench and reminded Johnson that he must sit on the side for blacks. Johnson didn't budge. He was thrown in jail and fined $10.

Herman appealed the case all the way to the Supreme Court and won. It set a new precedent for courts everywhere.

Herman first retired in 1974. He'd been in and out of private practice in Richmond. When he wasn't running his own office, he was a city attorney there and an administrative law judge for the federal government.

Herman, born in Surry, wanted to move back to where he spent much of his childhood. Marian hated Northern Virginia's congestion.

Although retired, Herman wasn't ready to quit law.

So he opened his own practice in Suffolk. In 1976, he became the first black assistant commonwealth's attorney for the city and returned to private practice in 1981.

Marian was his secretary.

``Things were pretty bad,'' Marian, 63, recalled. ``At first, it was difficult because he would tell me to do things, and I would take it personally.''

Marian eventually decided she'd go back to school to be recertified to teach. But Herman wanted her to become a lawyer.

She studied under him for three years. Her third try at the bar exam was the charm.

``We didn't do anything special,'' she said. ``The first time I took the test, I found out how much I didn't know. It was quite an experience.''

The Benns listen intently to each other.

``Do you want to say segregation or discrimination?'' asked Marian.

``Oh, discrimination,'' he said, glancing her way.

Suffolk Commonwealth Attorney C. Phillips Ferguson said he'd give anything to know their secret for youthfulness.

``He looks the same now as he did when I hired him years ago,'' Ferguson said.

``Herman did an outstanding job, and he and his wife have done well in their private practice. I don't know anyone who doesn't like him. He's a nice guy, just a good person.''

The Benns have been in the same office since Marian started practicing. Their downtown office on West Washington is about a 20-minute drive from their home in Northern Suffolk.

Marian no longer makes the commute.

``I stopped taking cases really early,'' she said. ``This is the first day I've been in the office this year.''

His office is almost empty - except for a stack of files and a computer with an Alpha Phi Alpha mouse pad, symbolizing his love for his fraternity.

``The attorney who is in our office now is an Alpha,'' he said, smiling.

Clarence H. Brooks is taking over the practice.

Herman specialized in adult criminal and real estate cases.

Marian handled domestic, social security, worker's compensation and personal injury cases.

Helivi Holland, an assistant commonwealth's attorney in Portsmouth, said the Benns will truly be missed.

The couple gave her a job right out of law school, made space for her in their office and let her use their secretary at no charge.

``A lot of people talk about Mr. Benn, but Mrs. Benn has done very well,'' Holland, 31, said. ``Suffolk is going to be missing two very knowledgeable attorneys.''

The Benns say they will have plenty to do, and their work will be carried on.

``There are a lot of lawyers around here,'' Herman said.

``Yeah,'' continued Marian. ``They'll find somebody else. They forget very easily.''"

Another great 4th of July at Monticello

One reason why it is great to be in the W.D. Va., is that Monticello is in our district, and there Chief Judge Jones can be seen swearing in this year's group of new citizens, by way of this extraordinary and delightful post from Rick Sincere.

Also there was Sam Waterston, and former Virginia Supreme Court justice John Charles Thomas.

On law schools and the bar exam

In this widely-cited article from the Norfolk paper about the "real" face of the law school at Regent, there is this quote:

"At that hearing, U.S. Rep. Steve Cohen, D-Tenn., asked [Monica] Goodling: "Are you aware of the fact that in your graduating class, 50 to 60 percent of the students failed the bar the first time?"

"I know it wasn't good," said Goodling, who originally claimed Fifth Amendment protection against self-incrimination in refusing to testify."

The article includes this chart comparing Virginia law schools:



A committee of the ABA, in the exercise of its much-maligned role as the overseer of accreditation for the nation's law schools, has propounded a new scheme to nail fledgling law schools with low bar passage rates. The proposal can be found here, with a cover letter signed by Roanoke lawyer Bill Rakes, the committee chairman. The gist is if your graduates pass the bar at a rate of ten points less than average, then you can get the boot.

I'd like to see a chart on which law schools don't meet the new standard.

This sounds familiar

The Peninsula Virginia law blog posts here that the once (and future) registrar of voters in Williamsburg has hired Jerry Kilgore to sue over his being put on leave and replaced by the electoral board there.

Those registrars, starting with Kilgore's mother, have mostly won their lawsuits against electoral boards.

Steve M. to get nominated to Fourth Circuit

SC Appellate Law Blog says here that the White House will nominate Steve Matthews to the Fourth Circuit for the vacancy left by Senior Judge Wilkins, citing this story from The State.

Interesting e-discovery case from W.D. N.C.

Brian Peterson reports here on the spoliation issue in an e-discovery dispute in a case from right here within the Fourth Circuit.

My observation of e-discovery to date is that its main uses are intimidation through cost and embarrassment. E-mails are often useful, whole hard drives are rarely so.

So, I read this in an e-mail flyer for somebody's seminar:

"Many attorneys harbor the false belief that they can demand the production or mirroring of an opponent's hard drive. Federal Rule of Civil Procedure 34(a) does not create a direct route to a party's Electronically Stored Information system. Copying a hard drive is allowed only on a finding that the opponent's document production has been inadequate and that a search of the opponent's computer could recover deleted relevant materials. Diepenhorst v. City of Battle Creek, Slip Copy, 2006 WL 1851243.

One Court refused to allow mirroring of a hard drive on mere suspicion that the opponent may be withholding discoverable information. Another Court allowed for the mirroring of a computer hard drive upon a finding of evidence that copies of emails were altered to downplay or conceal the relationship between plaintiff and a third party. Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal)."

On Chief Justice Roberts at the judicial conference

This post comments on Chief Justice Roberts' remarks at the Fourth Circuit judicial conference at the Greenbrier.

It says in part:

The late William Rehnquist would always offer to the 4th Circuit a quick summary of the lesser-known decisions of the previous term, which he described, quoting a Thomas Gray poem, as flowers "born to blush unseen." But Roberts said that tradition, along with Rehnquist's gold-striped judicial robe, are "very much his own and should not be imitated."

Instead, Roberts quoted Robert Frost poems titled "The Tuft of Flowers" and "Mending Wall" to draw some conclusions about judicial fellowship. "I'm not an expert on Frost," said Roberts, "but an important part of fellowship is ongoing inquiry, examination and debate."

That cool Seventh Circuit Wiki

Today, I was thinking about some appellate procedure questions, and turned for the answers to the Practitioners' Handbook from the Seventh Circuit - not that my case is in the Seventh Circuit, it is pending in the Fourth Circuit, which has no cool wiki handbook.

Pirated from the Rose Hill library event

Here is a picture I stole of my sister Joan with Ron Flanary at the kickoff event for the public access broadband project in Rose Hill.

Those still vacant seats on the Fourth Circuit

Larry O'Dell of the AP had this interesting update on the vacancies on the Fourth Circuit, quoting among others Virginia appellate guru Steve Emmert.

A little while back, someone at Power Line offered this discouraged post, titled "The Fourth Circuit - Going, Going, Gone?"

The story remains the same - the Bush administration has frittered away their chances to load the circuit bench with their choices, and now they will be lucky to get anyone confirmed. Senator Webb's creditable willingness to cooperate with Senator Warner in putting together a joint list of names for the Fourth Circuit adds to intensity to the question, why doesn't the White House act?

At least we're not in Brooklyn

In this Outside Counsel post is told the tale of a call from the clerk's office, in which the clerk says the latest filed motion is no good because the referenced client is not a party, to which the lawyer responds, that's no party, that's the name of the building where I work.

That story makes me think of the time we had some printed forms bearing the name of a circuit court clerk, "Russell V. Presley," that prompted one of the staff construed to mean that we were involved in the lawsuit of Russell versus Presley.

I'm just hoping for three bars in front of the TV

This Slashdot post says the new WiFi distance record is over 200 miles.

Maybe instead of the router from upstairs, I need to be connecting to something in Staunton.

Good books read lately

Since last week's trial, I've been back to the library.

I just read Kinfolks and re-read Kinflicks by Lisa Alther. (I told Jim Elliott that I first read Kinflicks sometime before 1977, and decided at the time I wasn't old enough to read it. I may not be now, either.)

Having just read a Julius Caesar, I had to read a Cicero.

Now, I'm reading a biography of James Dickey, by Henry Hart, of the College of William & Mary.

One to catch sometime - Weird Virginia, reviewed here by Joe Kennedy.

The new girl

A low-res phone cam image of Jenna, who brought the head of a dead mouse into the house last night.

The Rose Hill website

Here is the new website for Rose Hill, in Lee County.

It says my sister Joan is the webmaster.

Regarding the Rose Hill internet project, it has this report, of stuff that has since happened:

"A grand opening event for the new Rose Hill Library computer center is scheduled for June 11, 2007. The public is invited to attend. The grand opening event festivities will begin at 11:45AM with live music provided by the Wilderness Road Dulcimer Club. Speakers will begin at 12:30PM, including presentations by U.S. Congressman Rick Boucher, Virginia Senator William Wampler, and Virginia Delegate Terry Kilgore. Executive Director of LENOWISCO Planning District Commission, Ron Flanary, reports, "The Connect Rose Hill project is part of regional, collaborative efforts to provide access to broadband Internet across southwest Virginia. We're very proud to be offering broadband service in western Lee County."

Construction of the new wing onto the Rose Hill Library is complete and now houses a 10-station computer center. The project collaborators include LENOWISCO, Sunset Digital Communications, Lee County, Lonesome Pine Regional Library, Appalachian Resources, LLC, Lane Engineering, and Pete Sumpter General Contractor, Inc. LENOWISCO contracted with Sunset Digital Communications, owned and operated by Jonesville resident Paul Elswick, to serve as the Internet service provider for the computer center. Sunset Digital Communications is a Virginia Interexchange Carrier Internet Service Provider that manages the LENOWISCO Rural Area Network - a high speed regional fiber optic network that provides services to the businesses and residents of Southwest Virginia. Lee County owns the Rose Hill Library building and Lonesome Pine Regional Library manages the Rose Hill Library. A Lee County-based firm, Pete Sumpter General Contractor, Inc., completed the construction of the library wing. Lane Engineering prepared the architectural design and engineering services for the library wing construction project. Bobby R. Lane of Lane Engineering stated, "The construction of the library wing was a smooth project, staying within budget and on-time. We enjoyed helping to create such a wonderful facility in western Lee County."

The new computer center will provide free access to high speed Internet and offer free computer and Internet training workshops. Amy Bond, Executive Director of Lonesome Pine Regional Library reports, "Effective June 11, 2007, when the Rose Hill Library's new computer center opens, we will expand the library's operating hours to 40 hours each week, including some evening and weekend hours. Accordingly, the Rose Hill Library will be open as follows: Mondays and Fridays from 8:30AM to 5:00PM, Tuesdays and Thursdays from 11:30AM to 8:00PM, Wednesdays from 8:00AM to noon, and Saturdays from 10:00AM to 2:00PM."

Free computer and Internet training workshops will be provided in the new computer center beginning in June. Workshops will be typically scheduled for Monday mornings at 10:00AM and Thursday evenings at 6:00PM. Workshops scheduled for June and July include Computer Basics, Internet Basics, E-Mail Basics, Basic Keyboarding, Using the Mouse, Microsoft Word 2003, and Digital Photo. The first workshop, Computer Basics, will be held on June 14, 2007 at 6:00PM.

In addition, a Rose Hill website will be launched in June on the Internet at www.rosehillvirginia.org. LENOWISCO has contracted with Appalachian Resources, LLC, a Rose Hill-based consulting firm, to develop and maintain the new Rose Hill community website. Joan Porter, Manager of Appalachian Resources, LLC explains, "The Rose Hill website will include local photos, business directory, church directory, area attractions, and an interactive Rose Hill blog."

The "Connect Rose Hill" project is bringing high speed Internet access to the Rose Hill Elementary School, Rose Hill Library, and Rose Hill homes and businesses.

The U.S. Department of Agriculture (USDA) Rural Utilities Service's Community Connect Broadband Program is providing the primary financial support to LENOWISCO for the "Connect Rose Hill" project. The USDA Community Connect grant is providing $506,048 for the "Connect Rose Hill" project. Additional funding for the project and other regional broadband expansion is being provided by the Virginia Tobacco Indemnification and Revitalization Commission. The C. Bascom Slemp Foundation, Lee County, and Lee County Community Foundation provided further financial support for the Rose Hill Library project."

April speaks

Here at Hillbilly Savant April Cain wrestles with what to think about the proposed new coal-powered electricity generation plant in Wise County.

She concludes:

"But I'd also like to see the store fronts of Saint Paul bustling again. In my dreams I can walk along its main street on the sidewalk and look at all the pretty things that are in the windows, just like in my childhood. In these visions, its main business district will always have a Western Auto, a Norton Floral Shop, a Woolworth's and a Willis Department Store instead of empty storefronts. I wish someone could find a way to make this happen without also making a big ugly mess. In my dreams someone besides Big Power and Big Coal will come a courtin' the Perty Miss Southwest Virginia. But if no one else comes, perhaps a less than perfect marriage might be better than her continuing to be an economic spinster."

The old girl

Here's an old Chrissy picture I just found on this machine. I was talking about her this week, or trying to.

Ouch

Well, we had a trial this week and lost. The Kingsport paper has this account.

As I've written before, I've been in a number of these Elrod cases, and the Democrat side has won every time, as plaintiffs and as defendants, regardless of the judge or the jury division (Big Stone Gap, Abingdon, Roanoke), except for one case where the verdict was overturned on appeal.

In law school, I met John Tucker, the husband of Professor Jayne Barnard, who represented the plaintiffs in the Elrod case, and who wrote a lively and entertaining book about that case and others from his law practice in Chicago.

In one case, we got a remittitur at the trial court level, from $85,000 to $15,000 (then won outright on appeal). In the district court, we made these arguments, back in 1998:

"At trial, the defendant moved for judgment as a matter of law on emotional distress damages, citing the Fourth Circuit’s decision in Price v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996). The Price court dealt with two issues related to damages. One was the quantity and quality of proof necessary to support a damages claim. The other was the kind of causation that must be shown for the plaintiff to recover.

In Price, the Court noted that "[t]raditionally, common law courts have been reticent regarding compensatory damages in the absence of a physical injury.” 93 F.2d at 1250. "Empathizing with the trepidation of common law courts in analyzing such claims, the federal courts have recognized that emotional distress claims arising from constitutional violations are not immunized from the nebulous, speculative character that plagues their common law analogues." Id. The Court observed that "the only evidence of Appellees’ emotional distress was their own testimony." Id.

"[T]he case law reveals that courts scrupulously analyze an award of compensatory damages for a claim of emotional distress predicated exclusively on the plaintiff's testimony." Id. (citing cases). "If, as in the instant appeal, 'the part[ies] provide the sole evidence [of emotional distress, they] must reasonably and sufficiently explain the circumstances of [their] injury and not resort to mere conclusory statements . . . and seriatim recitations of 'depression' or 'hurt feelings' as evidence of emotional distress offered by the plaintiff fail to meet this standard." Id. "A plaintiff asserting a constitutional violation, therefore, must produce evidence of 'demonstrable emotional distress' or 'demonstrable mental anguish.'" Id.

The Price court examined a number of opinions where emotional distress verdict were rejected and distilled the factors on which the courts relied. Other later opinions are consistent with the analysis in Price. In Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), the Fifth Circuit struck the emotional distress award in a section 1981 case and directed the court on remand to award only nominal damages. The Court observed:

In order to establish intangible loss, we recognize that Carey requires a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award. . . . Hurt feelings, anger, and frustration are part of life. Unless the cause of action manifests some discernible injury to the claimant’s emotional state, we cannot say that the specificity requirement of Carey has been met. Consequently, based on the above reasoning, we hold that the district court abused its discretion in awarding emotional distress damages to Brown on his § 1981 claim. We vacate the district court's $40,000 emotional distress award and remand the case with instructions for the district court to award nominal damages.

Patterson, 90 F.3d at 940; see Annis v. County of Westchester, 1998 WL 49317 at *10 (2d Cir. 1998) (vacating verdict for employee-plaintiff on grounds that plaintiff’s uncorroborated testimony was insufficient to warrant an award of emotional distress damages, where there were no physical manifestations and plaintiff remained employed).

The same defects in plaintiffs’ testimony in Price are present here: no corroboration, no physical symptoms, no change in lifestyle, no treatment, no out-of-pocket losses related to the alleged emotional distress (in fact, no out-of-pocket losses at all).

. . .

The point of Price is that the causation that is required is that the constitutional violation must cause the damage, as distinct from the loss of government benefits incidental to the violation. "[C]ompensatory damages for emotional distress must be attributed to the actual constitutional violation, as opposed to the denial of the ultimate benefit, and must be proved by a sufficient quantum of proof demonstrating that the violation caused compensable injury." Price, 93 F.3d at 1246 (citing Carey v. Piphus, 435 U.S. 247 (1978)). "Carey . . . teaches that compensatory damages for emotional distress are available for a constitutional violation, but must be attributed to the invidious discrimination, not to the deprivation of an ultimate benefit, to recover more than nominal damages, actual injury must be caused by the constitutional violation must be proved by sufficient evidence." Id. The Price court observed its earlier decision in Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) (per curiam). "In remanding, we observed that in order to recover such damages, Burt must prove that her injury flowed from the denial of due process, not from termination of her teaching position, the denial of her ultimate benefit." Price, 93 F.3d at 1247.

Applying this discussion to the facts of Price, the Court observed "Appellees must establish that their injury is grounded in the denial of equal protection, not their lack of promotions." Id. at 1248. Similarly, the burden is on the plaintiff in this case to prove that his damages were caused by the constitutional right, and not the deprivation of the ultimate employment benefit.

. . .

Where the Court is convinced that a damages award is excessive, it may order a new trial, a new trial on damages, or a remittitur. Defendant has argued above, based on Price, that judgment as a matter of law should be entered. In the alternative, if the Court is of the view that some amount of emotional distress may be recoverable, nevertheless it should order a new trial or direct the remittitur of the award, on the basis of Price and Hetzel v. County of Prince William, 89 F.3d 169 (4th Cir. 1996).

In Hetzel, plaintiff claimed to be the victim of various forms of unlawful discrimination, although she was not discharged. The jury rejected all but one of her claims, yet awarded $750,000 for her emotional distress, which the District Court reduced to $500,000. 89 F.3d at 170. The appeals court reversed and remanded, concluding that the damage award was excessive as a matter of law.

As in this case, Hetzel relied exclusively on her own brief, conclusory statements to prove her emotional distress damages. She kept her job, never sought counseling, suffered no impairment of job performance, and presented no corroborating evidence. 89 F.3d at 171. "Hetzel’s thin evidence of rather limited damages would in-and-of itself entitle her to only a minimal award of damages." Id. The Court also observed the problem of causation, that most of Hetzel’s was caused by factors other than the claim on which the County was found liable. Id.

"That this award is outrageous is confirmed by even a cursory analysis of the impressive array of cases cited by appellee . . . . These cases, all of which contained a substantial award of $25,000 or more for intangible injuries such as emotional distress, involved plaintiffs that were either the victims of invidious discrimination, suffered serious — often permanent — physical injuries, or were discharged and had difficulty finding alternative employment." Id. at 172. "In stark contrast to these cases . . . Hetzel suffered no discrimination, was not physically injured, is not under a physician’s care, and remains an officer in good standing." Id.

. . .

In remanding the case, the Court suggested Bradley v. Carydale Enter., 730 F. Supp. 709 (E.D.Va. 1989) and McClam v. City of Norfolk Police Dept., 877 F. Supp. 277 (E.D.Va. 1995) as "comparable to what would be an appropriate award in this case." 89 F.3d at 173. The plaintiffs in Bradley and McClam were awarded emotional distress damages in the amounts of $9,000 and $15,000, respectively. Bradley, 730 F. Supp. at 726; McClam, 877 F. Supp. at 284. McClam cites Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir. 1989). In Cygnar, the Seventh Circuit approved remittitur from $55,000 to $15,000, in an employment case involving job transfers, which the Court distinguished from discharge cases. 865 F.2d at 848.

The few local decisions in analogous cases highlight the excessiveness of the verdict in this case. In Chester v. Wise County Electoral Board, Civil Action No. 95-0037-B, aff’d, 117 F.3d 1413, 1997 WL 381964 (4th Cir. 1997) (unpublished opinion), plaintiff was out of work for six months, but was awarded only $5,000 for his emotional distress. In Roberson v. Mullins, 876 F. Supp. 100 (W.D. Va. 1995), plaintiff was discharged; the Court awarded $10,000 for his emotional distress. In Bockes v. Fields, 798 F. Supp. 1219 (W.D. Va. 1992), aff’d in part and rev’d in part, 999 F.2d 788 (4th Cir. 1993), plaintiff was discharged without pre-termination due process but reinstated before trial; she was awarded $20,000.

Based on the analysis in Hetzel, the $85,000 in this case is clearly excessive. The Court should order a new trial. In the alternative, the Court should order a remittitur, with the condition that a new trial will be granted unless plaintiff accepts reduction in the verdict to an appropriate amount, which based on Hetzel could be no more than $15,000."

Penalty clause in commercial real estate contract declared invalid

In ACL Realty Corp. v. .Com Properties, LLC, Judge Conrad of the W.D. Va. declared invalid as a penalty a provision in a real estate contract, where the contract provided separately for liquidated damages and the amount of money to be paid under the contested provision was disproportionate to any actual damages.

I tried to argue something similar related to the late fees in an equipment lease, not too long ago, citing among other cases Abbs's Moving Service v. Wooldridge, 612 So. 2d 449, 452 (Ala. 1993) ("We have considered the argument that the late fee provisions of the lease should be declared a penalty and, therefore, void as against public policy. We conclude from a reading of the lease--which allows for a 5% charge for rent 5 days overdue and then an additional 5% charge for every 30 days thereafter that a portion of the rent is outstanding--that the lease imposes a penalty.")

Under Va. Code § 8.2A-108(1), a court can refuse to enforce an unconscionable term in an equipment lease.

Webb and Warner send five names to White House for Fourth Circuit

The Richmond paper reports here, the Roanoke paper reports here, and the Charlottesville paper reports here that Senators Warner and Webb have sent to President Bush the names of Justices Agee and Lemons, U.S. District Judge Conrad, lawyer Thomas Albro, and Richmond law professor John Douglass for nomination to the Fourth Circuit.

If those are the choices, I'm rooting for Judge Conrad, whom my Grandma Conrad claimed was somehow kin to us, and is from Southwest Virginia and lived for a while in Abingdon, and went to William & Mary Law, and clerked in the W.D. Va. before he became magistrate judge.

On being the best-read Virginia law blog

Guy Tower sent out his note to the VBA, saying this week that SW Virginia law blog is the best-read Virginia law blog, according to Justia.

My comments are these:

1. The rankings don't count Steve Emmert's site or the VLW blog, which really are the best.

2. Being the best-read Virginia law blog could be one of those distinctions like best sushi in Buchanan County - not much distance between best and worst.

Primary night

Geez, my friends Mickey McGlothlin and Rip Sullivan both lost - one by less than 600 on turnout of 14%, one by less than 300 on turnout of 6%.

What were the other 80-90% of the registered voters doing today?

Surgery this week

I'm in Richmond area this week, not just for the graduation, but also because my father-in-law is having an operation. He is a fun guy, and here is one of my favorite pictures of him with Dana.

On Justice Lacy's announcement

Years ago, I made my first of so far only two appearances before the Virginia Supreme Court, and took my wife along.

Afterwards, I asked her impressions, and one was that one of the justices wore really nice earrings.

Some time later, I told this story to Justice Lacy, whose earrings they were, and she laughed.

According to this VLW story, Justice Lacy will soon retire from the Court, and so it appears that she will not become Chief Justice in her time on the Court.

On James River graduation

Yesterday, I watched the nephew Andrew graduate with the 500+ members of the James River High School Class of 2007.

Governor Kaine was the main speaker. And, his remarks were very well done, he is an excellent speaker. He said the two things he remembered from his high school graduation in Kansas City were saying goodbye to his ex-girlfriend and watching one of the football guys hugging and carrying on with his parents. So, he said, if he could remember those two things after 35 years, he suggested the grads do likewise - clear the air with those you won't see again, and don't hold back on hugging your parents. He also said, be informed voters, not apathetic non-voters, noting that when Linwood Holton was elected in 1969, more than two-thirds of Virginia's registered voters participated, but when he was elected two years ago, the turnout was less than 50 percent. He said you need to vote because sometimes, every now and then, what elected officials do is important.

From last fall, here are the graduate and I.